As filed with the Securities and Exchange Commission on November 21, 2001
Registration No. 333-__________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SMARTFORCE PUBLIC LIMITED COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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REPUBLIC OF IRELAND N.A.
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
INCORPORATION OR ORGANIZATION)
900 CHESAPEAKE DRIVE
REDWOOD CITY, CALIFORNIA 94063
(ADDRESS, INCLUDING ZIP CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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2001 OUTSIDE DIRECTOR OPTION PLAN
1995 EMPLOYEE SHARE PURCHASE PLAN
GREGORY M. PRIEST
PRESIDENT AND CHIEF EXECUTIVE OFFICER
SMARTFORCE PUBLIC LIMITED COMPANY
900 CHESAPEAKE DRIVE
REDWOOD CITY, CALIFORNIA 94063
(650) 817-5900
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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Copy to:
STEVEN V. BERNARD
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304-1050
CALCULATION OF REGISTRATION FEE
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TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED OFFERING PRICE AGGREGATE OFFERING REGISTRATION
PER SHARE(1) PRICE(1) FEE(1)
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Ordinary Shares issuable
upon exercise of options
under the 2001 Outside
Director Option Plan(2)...... 350,000(3) $19.95 $6,982,500.00 $1,745.63
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Ordinary Shares issuable
upon exercise of options
under the 1995 Employee
Share Purchase Plan.......... 500,000(3) $19.95 $9,975,000.00 $2,493.75
=============================================================================================================
TOTAL.................... 850,000(3) $19.95 $16,957,500.00 $4,239.38
=============================================================================================================
(1) Computed pursuant to Rule 457(h) solely for the purpose of determining
the registration fee based on the average high and low trading price of
the Registrant's American Depository Shares on the Nasdaq National
Market on November 15, 2001.
(2) Each Ordinary Share is represented by one of the Registrant's American
Depositary Shares.
(3) Pursuant to Rule 416, the Registration Statement on Form S-8 shall also
cover any additional Ordinary Shares that become issuable under the 2001
Outside Director Option Plan or the 1995 Employee Share Purchase Plan by
reason of any stock dividend, stock split, recapitalization or other
similar transaction effected without receipt of consideration that
increases the number of the Registration's outstanding Ordinary Shares.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents and information filed with the Securities and
Exchange Commission (the "Commission") by the Registrant are hereby incorporated
by reference in this Registration Statement:
1. The Registrant's Annual Report on Form 10-K/A for the fiscal
year ended December 31, 2000.
2. The Registrant's Quarterly Report on Form 10-Q for the quarter
ended on March 31, 2001.
3. The Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 2001.
4. The Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 2001.
5. The description of Registrant's Ordinary Shares contained in the
Registrant's Registration Statement on Form 8-A filed on March
9, 1995 and amended on April 10, 1995.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended,
and prior to the filing of a post-effective amendment which indicates that all
securities offered under this registration statement have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be a part
thereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Articles of Association authorize the Registrant to
indemnify the directors and officers of the Registrant against certain
liabilities and expenses incurred by such persons in connection with claims made
by reason of their being such a director or officer. The Registrant's
subsidiary, SmartForce USA, has entered into indemnification agreements with its
directors and officers and directors and officers of the Registrant serving at
the request of SmartForce USA. The indemnification agreements under certain
circumstances require the Registrant, among other things, to indemnify such
officers and directors against certain liabilities that may arise by reason of
their status or service as directors or officers (other than liabilities arising
from willful misconduct of a culpable nature) and to advance their expenses
incurred as a result of any proceeding against them as to which they could be
indemnified. The Registrant has obtained directors and officers' insurance
providing indemnification for certain of the Registrant's directors, officers,
affiliates or employees for certain liabilities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIM.
Not applicable.
ITEM 8. EXHIBITS.
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Exhibit
Number Document
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4.1 2001 Outside Director Option Plan.
4.2(1) 1995 Employee Share Purchase Plan.
5.1 Opinion of Binchys, Solicitors with respect to the securities being
registered.
23.1 Consent of Ernst & Young.
23.2 Consent of Binchys, Solicitors (contained in Exhibit 5.1).
24.1 Power of Attorney (see Signatures).
(1) Incorporated by reference to Exhibit [4.1] to the Registrant's
Registration Statement on Form S-8 (File Nos. 333-58334, 333-32380,
333-86861, 333-83927, 333-68499, 333-957031, 333-35745, 333-25245,
333-06409, 333-504, and 33-94300).
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Redwood City, State of California, on this November
21, 2001.
SMARTFORCE PUBLIC LIMITED COMPANY
By: /s/ GREGORY M. PRIEST
-----------------------------------
Gregory M. Priest
Chief Executive Officer
and Chairman of the Board
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Gregory M. Priest and David C. Drummond,
and each of them, as his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully and to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, or their or his substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
SIGNATURE TITLE DATE
--------- ----- ----
/s/ GREGORY M. PRIEST Chief Executive Officer November 21, 2001
-------------------------------------- (principal executive officer)
Gregory M. Priest and Chairman of the Board
/s/ DAVID C. DRUMMOND Executive Vice President, Finance November 21, 2001
-------------------------------------- and Chief Financial Officer
David C. Drummond (principal financial officer)
November 21, 2001
/s/ JAMES S. KRZYWICKI Director
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James S. Krzywicki
November 21, 2001
/s/ PATRICK J. McDONAGH Director
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Patrick J. McDonagh
November 21, 2001
/s/ JOHN M. GRILLOS Director
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John M. Grillos
November 21, 2001
/s/ RONALD C. CONWAY Director
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Ronald C. Conway
INDEX TO EXHIBITS
Exhibit
Number Document
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4.1 2001 Outside Director Option Plan.
4.2(1) 1995 Employee Share Purchase Plan.
5.1 Opinion of Binchys, Solicitors with respect to the securities being
registered.
23.1 Consent of Ernst & Young.
23.2 Consent of Binchys, Solicitors (contained in Exhibit 5.1).
24.1 Power of Attorney (see Signatures).
(1) Incorporated by reference to Exhibit [4.1] to the Registrant's
Registration Statement on Form S-8 (File No. 333-58334,
333-32380, 333-86861, 333-83927, 333-68499, 333-957031,
333-35745, 333-25245, 333-06409, 333-504, and 33-94300).
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